I was recently asked whether it was true that President Trump had authorized Afghanistan for Visa Free travel to the United States for visits of up to 90 days at a time.

It seemed a bit inconsistent with the tone of the Administration’s recent actions, and because all of the 38 countries and territories selected by the U.S. government for the Visa Waiver Program program are high-income economies with a very high Human Development Index. As well, a Forbes article from 7 days ago noted that Afghanistan has the second highest B (visitor) visa refusal rate of 73.8% while a country must have had a nonimmigrant visa refusal rate of less than 3% for the previous year to qualify for the Visa Waiver Program. Visa Waiver Program. Alison Siskin. January 15, 2013, (PDF)

I wanted to give a definitive answer to the original question, so I, like anyone verifying an incredible “news story” these days, reviewed the source (in this case a suspicious website entitled “USA Television” that aped, perhaps not coincidentally, the same Old London font as “The Washington Post” and “The New York Times“. I then turned to the ever reliable Snopes.com which had a direct reference to the Visa Free Travel article and to “USA Television” itself:

“The web site USA Television capitalized on that controversy by pumping out a series of nearly identical fake news articles, each holding that President Trump had “signed a visa-free travel policy” for residents of a given country, ostensibly to “strengthen trade” with that country. For example, one such article claimed such a policy had been implemented for Pakistani nationals…But USA Television also ran an article that said the very same thing about Ghana. And Botswana. And Belarus.

In fact, in separate articles USA Television claimed President Trump had also implemented visa-free travel policies for citizens of Ethiopia, Haiti, Kenya, Jamaica, Malawi, Mauritius, Papua New Guinea, Russia, South Africa, Sri Lanka, Tanzania, Thailand, Uganda, Ukraine, Zambia, Zimbabwe, and the entire Caribbean…If USA Television and their ilk were to be believed, virtually anyone from anywhere in the world could now enter the U.S. for up to six months at a time without the need for obtaining a visa first.”

Thus, I can state that President Trump has not authorized Afghanistan (among many other countries) for Visa Free travel to the United States. But the lesson we can learn here is that it is everyone’s responsibility to engage in some critical thinking and make an effort to vet a “news” story, else you breathe life to a lie.

Coindesk.com notes that Bitcoin entrepreneur Roger Ver was denied a non-immigrant visa for the third time this week. He was planning to speak at the North American Bitcoin Conference in Miami later this month.

Interestingly, Mr. Ver was denied under Section 214(b) of the Immigration and Nationality Act (INA) which states, “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case – that the applicant only intends to visit America for a short duration and maintains ties abroad that would compel them to leave the U.S. at the end of the temporary stay. Consular officers have a substantial say in adjudicating each applicant to determine whether that applicant has overcome the requirements of this section.

It is strange then, to say the least, that Mr. Ver was denied by the U.S. Consular General, Barbados, under a regulation that requires he prove his intent to depart the U.S. when he appears to have already done so. While the Coindesk article does note that Mr. Ver’s “parents, siblings and extended family all live in the US“, his decision last year to legally relinquish his U.S. Citizenship (at an apparent cost of $350,000, which he paid into the U.S. treasury) his decision to take up citizenship of a different country, his having resided mainly abroad for the past 9 years – these facts objectively constitute clear, material and probative evidence establishing an intent to depart the U.S. after a short visit.

While Mr. Ver can attempt to enter the US in the future (a denial under section 214(b) is not permanent) chances for subsequent approval diminish with each denial. Meaning: the fourth time is probably not going to be the charm.

While it’s a good time for us to revisit INA 214(b) – an overbroad, overused “hatchet” which has kept many a qualified individual out of the U.S, it appears possible that Mr. Ver’s visa denial is actually predicated upon other (read: political) grounds.

The Wall Street Journal reports that the U.S. Government will fine Infosys, an Indian Technology/Consulting giant, almost $35,000,000.00 for employing B-1 visa workers in lieu of H-1B visa workers.

By way of background, last year, Judge Thompson of the Federal Court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas. Palmer’s rejected claims were subsequently resurrected by the U.S. Department of Justice and the Department of Homeland Security, which continued its investigation into whether Infosys wrongly filed B-1 visas for workers performing work that actually required H-1B visas.

In a 2011 blog post I wrote about how Infosys may have been engaging in a perfectly legal action; per 9 FAM 41.31 N11, “ALIENS NORMALLY CLASSIFIABLE H-1 OR H-3″:

“There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:

(1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”

(2) In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad…”

However, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.

Moving back to present: Infosys’ fine is unprecedented in the history of Immigration law. It will have a major impact on both our nation’s technology/consulting sector and on our Immigration policy. In light of the fact that other nations are eagerly recruiting the world’s best and brightest (sometimes from within our borders), it can only be hoped that the Infosys fine will reinvigorate the push for the creation of a new U.S. visa category specifically designed for short term consulting projects, and/or to increase the U.S.’s yearly quota for H-1B professional workers to a level that isn’t exhausted in one week.

In March of 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP) which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. Following the success of the IWP, as part of continuing efforts to streamline the visa process, and to meet increased visa demand in India, the U.S. Mission is pleased to announce an expansion of the IWP. We expect this expansion to benefit thousands of visa applicants in India.

Earlier this week, Judge Thompson of federal court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas.

By way of background, when these allegations first arose in early 2011, I wrote about the strong likelihood that Infosys may have been engaging in a perfectly legal action under existing U.S. immigration law on B-1 visas. Subsequently, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.

Returning to the court’s decision: It was interesting to note that despite all the recent attention on various states’ interpretation of federal immigration law, Judge Thompson avoided the topic entirely: “Palmer’s brief spends an inordinate amount of time addressing whether Infosys engaged in visa fraud. To be clear, this litigation does not concern whether Infosys violated American immigration law. Rather, Palmer’s suit rises and falls on a simple inquiry: whether he has created a genuine dispute of material fact on his state-law claims.”

Dear Ashwin,I wanted to bring my brother over to the US for Diwali, and I sent an invitation letter, but the consulate in Chennai turned him away. What do the consular officers look for in these situations, and what should we watch out for the next time I try to get a visitor’s visa for brother or parents? When can I reapply for him? Lakshmi

Dear Lakshmi,Section 214(b) of the Immigration and Nationality Act (INA) states: “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case – that they only intend to visit America for a short duration. In qualifying for B (Visitor) F (Student) or J (Exchange Visitor) visas, an applicant must demonstrate compliance with this section of the law. Most refusals concern the requirement that the applicant possess or maintain a residence abroad that he has no intention of abandoning. Applicants thereby demonstrate that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The INA places this burden of proof squarely on the applicant. (Note that these requirement do not apply to H or L Visa holders who may maintain ‘dual-intent’).

Consular officers have the last word in deciding who may enter the US and evaluate each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad. Some examples of ties can be a job, a house, a family, and a bank account. These ties bind you to your home country and demonstrate that you will return after your trip to America. Despite the fact that consular officers attempt to provide a case-specific evaluation, they have limited time allotted to each client. It is imperative that you have a well documented and organized petition which demonstrates the strength of your applicant’s case by providing evidence of the applicant’s strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants.

You should also attempt to provide documentation of why the visa applicant is coming to the United States. Temporary trips of a short duration (less than six months) for a specified period of time with a clearly defined start and end date (such as a marriage or graduation) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American ‘sponsor’ are of limited benefit to the applicant – the consular officer is mainly concerned with the qualifications of the applicant themselves.

Your brother can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show further convincing evidence of ties outside the United States. The applicant’s situation must have substantially changed since the last application. Demonstration of strong ties is still key.

Accommodating U.S. State Department officials bend over backward to grant visas to elite figures in sports, science, arts, education and business.

CHARLOTTE, N.C. – International soccer star David Beckham and wife Victoria, formerly Posh Spice of the Spice Girls, don’t wait months or years to enter the United States legally.

Beckham’s status, bankroll and his attorney see to that. He receives approval for his visa within two weeks. Accommodating U.S. State Department officials grant him after-hours appointments and have asked him to pose for photos.

As an ”alien of extraordinary ability,” Beckham is eligible for an O-1 work visa reserved for elite figures in sports, science, arts, education and business.

These and companion visas for family and support personnel have no caps on the number who can arrive. Their numbers have more than doubled over the past decade.

Meanwhile, specialty workers with four-year degrees can’t always bend the bureaucracy like Beckham. Demand for visas from these workers, with professions such as computer programming, engineering and
accounting, has surged. But the cap, briefly raised a few years ago, remains at 65,000 — what it was in 1992. The 2007 cap was filled May 26, a record four months before the fiscal year begins.

Currently, Congress is debating whether to increase these visas to help relieve the backlog, as well as granting legal status to some of the estimated 12 million illegal immigrants.

Immigration ”law is really geared toward helping the rich and famous,” says David Whitlock, a partner who heads immigration practice at Fisher & Phillips in Atlanta.

Most industrialized countries have an immigrant pecking order, notes Alan Gordon, a Charlotte, N.C., immigration lawyer who recently helped a Canadian racing phenom enter the country.

DEPP SKIPPED LOTTERY

”How did Johnny Depp get to live in France? Did he go through a lottery system?” asks Gordon. “No. It’s because he’s spending money.”

Indeed, countries have always welcomed the elite.

”And maybe rightly so,” says Steve Hader, a lawyer with the Charlotte office of Moore & Van Allen who helped set up Beckham’s upcoming visit to the United States. “Maybe you want the best and the brightest.”

The Beckhams stand to make money on their upcoming summer trip, so they are required to secure work visas, not tourist credentials. He launched a youth soccer academy in Los Angeles last year, with the hope
of identifying talent to compete for U.S. teams on the world stage. Victoria has a fragrance and clothing line ”and still performs,” Hader says.

Some 11,960 esteemed scientists, doctors, musicians, professors, athletes and captains of industry and their family and support personnel arrived in 2005, up more than 145 percent since 1995, according to the State Department’s Bureau of Consular Affairs.

Hader has prepared O-1 visas for A-list singers, actors, actresses, scientists and even a celebrity chef. Client confidentiality precludes him from revealing names. Beckham gave the OK because he wants the
press for his academy.

O-1 applicants must be international superstars in their professions. The State Department recognizes Academy Awards, peer adulation, press coverage in ”major newspapers,” and/or ”a high salary . . . in relation to others in the field,” among other factors.

Beckham plays for the Spanish club Real Madrid and is captain of England’s national team in this year’s World Cup. Beckham was memorialized in the 2002 movie Bend It Like Beckham for his signature long kick, with the ball curving in flight. The fact Beckham is married to one of the Spice Girls is an added bonus, or curse, depending on which side of the paparazzi you’re standing.

Section 214(b) of the Immigration and Nationality Act (INA) is the basis for a substantial number of denials of nonimmigrant visa applications at the consular level. It reads;“Every alien shall be presumed to be an immigrant until he/she establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to reside in America. It is the burden of each visa applicant to demonstrate that this is not the case – that they only intend to visit America for a short duration. In qualifying for a B (Visitor) F (Student) or J (Exchange Visitor) visa, an applicant must demonstrate compliance with this section of the law. (Note that these requirement do not apply to H or L Visa holders who can maintain ‘dual-intent’).

Consular officers have the last word in deciding who may enter the US. They begin by evaluating each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad. Some examples of ties can be a job, a house, a family, and a bank account. These ties bind an applicant to their home country and demonstrate that they will return after the trip to America. Despite the fact that consular officers attempt to provide a case-specific evaluation, they have limited time allotted to each client. It is imperative that the applicant have a well documented and organized petition which demonstrates the strength of the case by providing evidence of strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants, or for those applicants who have a Green Card pending (which manifests a future intent to abandon the home country and reside in the US).

The applicant should also document how they will support themselves financially for the visit and why they are visiting the United States. Temporary trips of a short duration, for a specified period of time – with clearly defined start and end dates (such as a marriage, education, graduation or a religious event) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American ‘sponsor’ are of limited benefit to the applicant – the consular officer is mainly concerned with the qualifications of the applicant themselves.

An applicant who has been refused can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show additional evidence of ties outside the United States. The applicant’s situation must have substantially changed since the last application. Demonstration of strong ties is still key.

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